Rooney v. North Dakota
196 U.S. 319 (1905)

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U.S. Supreme Court

Rooney v. North Dakota, 196 U.S. 319 (1905)

Rooney v. North Dakota

No. 123

Argued January 12, 1905

Decided January 23, 1905

196 U.S. 319

Syllabus

By chapter 99, March 9, 1903, Laws of North Dakota, the statutes in force when plaintiff in error committed the crime for which he was tried, and when the verdict of guilty was pronounced were altered to the following effect: close confinement in the penitentiary for not less than six or more than nine months after judgment and before execution was substituted for confinement in the county jail for not less than three nor more than six months after judgment and before execution, and hanging within an enclosure at the penitentiary by the warden or his deputy was substituted for hanging by the sheriff in the yard of the jail of the county in which the conviction occurred.

Held that the changes, looked at in the light of reason and common sense, are to be taken as favorable to the plaintiff in error, and that a statute which mitigates the rigor of the law in force at the time the crime was committed cannot be regarded as ex post facto with reference to that crime.

Held that close confinement does not necessarily mean solitary confinement, and the difference in phraseology between close confinement and confinement is immaterial, each only meaning such custody as will insure the production of the criminal at the time set for execution.

Held that the place of punishment by death within the limits of the state is not of practical consequence to the criminal.

This writ of error brings in question a final judgment of the Supreme Court of the State of North Dakota, affirming the

Page 196 U. S. 320

judgment of an inferior court of that state by which, pursuant to the verdict of a jury, the plaintiff in error, John Rooney, was sentenced to death for the crime of murder in the first degree.

The sole question upon which the plaintiff in error seeks the judgment of this Court, and the only one that will be noticed, is whether the statute under which he was sentenced was ex post facto, and therefore unconstitutional in its application to his case. His counsel agrees that the judgment must stand if the statute be constitutional.

Before, as well as after, the passage of the statute under which the sentence was pronounced, the punishment prescribed by the state for murder in the first degree was death or imprisonment in the penitentiary for life. Rev.Codes of North Dakota, 1889, § 7068.

By the statutes in force at the time of the commission of the offense, August 26, 1902, as well as when the verdict of guilty was rendered, it was provided that, when a judgment of death is rendered, the judge must deliver to the sheriff of the county a warrant stating the conviction and judgment, and appointing a day on which the judgment is to be executed, "which must not be less than three months after the day in which judgment is entered, and not longer than six months thereafter," § 8305; that when there was no jail within the county, or whenever the officer having in charge any person under judgment of death deemed the jail of the county where the conviction was had insecure, unfit, or unsafe for any cause, he could confine the convicted person in the jail of any other convenient County of the state, § 8320; that the judgment of death should be executed within the walls or yard of the jail of the county in which the conviction was had, or within some convenient enclosure within such county, § 8321, and that judgment of death must be executed by the sheriff of the county where the conviction was had, or by his deputy, one of whom at least, must be present at the execution. Rev.Codes of North Dakota, 1899, § 8322.

Page 196 U. S. 321

The sentence of death was pronounced March 31, 1903. Prior to that date, namely, on March 9, 1903, the legislature -- without changing the law prescribing death or imprisonment for life as the punishment for the crime of murder in the first degree -- passed an act providing that all executions should take place at the penitentiary and amending certain sections of the Revised Codes of 1899. By that act, it was provided:

"§ 1. The mode of inflicting the punishment of death shall be by hanging by the neck until the person is dead, and the warden of the North Dakota penitentiary, or, in case of his death, inability, or absence, the deputy warden, shall be the executioner, and when any person shall be sentenced, by any court of the state having competent jurisdiction, to be hanged by the neck until dead, such punishment shall only be inflicted within the walls of the North Dakota Penitentiary at Bismarck, North Dakota, within an enclosure to be prepared for that purpose under the direction of the warden of the penitentiary and the board of trustees thereof, which enclosure shall be higher than the gallows, and so constructed as to exclude public view."

"§ 3. When a person is sentenced to death, all writs for the execution of the death penalty shall be directed to the sheriff by the court issuing the same, and the sheriff of the county wherein the prisoner has been convicted and sentenced shall, within the next ten days thereafter, in as private and secure a manner as possible to be done, convey the prisoner to the North Dakota Penitentiary, where the said prisoner shall be received by the warden, superintendent, or keeper thereof, and securely kept in close confinement until the day designated for the execution. . . ."

"§ 14. That section 8305 of the Revised Codes of 1899, relating to judgment of death, warrant to execute, be amended so as to read as follows:"

" § 8305. When the judgment of death is rendered, the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk under the seal of the court, stating the conviction and judgment, and appointing

Page 196 U. S. 322

a day upon which the judgment is to be executed, which must not be less than six months after the day in which the judgment is entered, and not longer than nine months thereafter."

"§ 16. All acts and parts of acts in conflict with the provisions of this act are hereby repealed."

Laws of North Dakota, 1903, c. 99, p. 119.

By the sentence, it was ordered that the accused be conveyed to the state penitentiary, "there to be kept in close confinement until October the ninth, 1903," and, within an enclosure in that building to be erected for the purpose, be hung by the warden of the penitentiary, or, in case of his inability to act or his absence therefrom, by the deputy warden, before the hour of sunrise on the day fixed for the execution.

Page 196 U. S. 324

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